The Mad Hatter Columbia U. Law Prof. Who Advised Comey That He Needed to Destroy the Village In Order to Save It* – UPDATED (His name is Daniel C. Richman.)
Daniel C. Richman, an adviser to Mr. Comey and a Columbia University law professor, argued that despite the backlash, Mr. Comey’s decision to inform Congress preserved the F.B.I.’s independence, which will ultimately benefit the next president. “Those arguing that the director should have remained silent until the new emails could be reviewed — even if that process lasted, or was delayed, until after the election — give too little thought to the governing that needs to happen after November,” Mr. Richman said. “If the F.B.I. director doesn’t have the credibility to keep Congress from interfering in the bureau’s work and to assure Congress that a matter has been or is being looked into, the new administration will pay a high price.”
Former senior law enforcement officials in both parties, though, say Mr. Comey’s decision to break with Justice Department guidelines caused these problems. Had he handled the case the way the F.B.I. handled its investigations into the Clinton Foundation and Mr. Manafort over the summer, the argument goes, he would have endured criticism from Republicans in the future but would have preserved a larger principle that has guided cases involving both parties. …
— F.B.I.’s Email Disclosure Broke a Pattern Followed Even This Summer, Matt Apuzzo, Michael S. Schmidt, Adam Goldman and William K. Rashbaum, New York Times, today
Gotta say, Comey comes off in this Washington Post article today as dumber than a rock.
— Me, here, yesterday
The particular part of that Washington Post article yesterday, by Ellen Nakashima, that I had most in mind was this:
Nonetheless, Comey’s concern about election timing has some officials scratching their heads in light of his decision last week to notify Congress — 11 days before the election — that the FBI was planning to review newly discovered emails in the investigation of Hillary Clinton’s email server.
That notification set off an uproar in both parties, as lawmakers demanded to know what was in the emails and whether there was any indication of criminal wrongdoing.
“It’s really hard to square” the two, said one official, who like several others spoke on the condition of anonymity to talk about internal discussions.
Comey’s reluctance to have the FBI linked to the public attribution was first reported by CNBC.
Other officials familiar with Comey’s thinking say that there is no contradiction in his actions. In the case of the newly found Clinton emails, the official said, he was well aware of the approaching election. But he determined it was more important to inform Congress of the development, given that he had testified that the investigation was completed and that he nonetheless would look at “any new and substantial information.”
Since almost immediately after the story broke on Friday, Comey’s had FBI insiders pushing this idea that Comey was “in a bind”. Again and again and again, this phrase “He was in a bind” is printed as Comey’s justification for what he did. Sometimes it’s attributed to “people familiar with his decisionmaking process,” or some such, sometimes instead just stated as fact. The last paragraph of the NYT article I excerpted from above reads:
But F.B.I. agents, many of whom are strongly supportive of Mr. Comey and his approachable leadership style, have struggled to defend his decision. They acknowledge that he was in a bind, but say the backlash against the F.B.I. is unlike any in recent history.
The bind? That if Comey didn’t announce this sketchy information publicly—information he learned of through a search warrant obtained in another case, on an unrelated matter, and that he didn’t actually know anything about because no search warrant had yet been obtained to learn things about—he would destroy his credibility with Congressional Republicans because the information might have proved helpful to Republicans in the imminent (and in more than 20 states, already ongoing) national elections.
And if the F.B.I. director doesn’t have the credibility to keep Congress from interfering in the bureau’s work and to assure Congress that a matter has been or is being looked into, the new administration will pay a high price.
And the only way for the F.B.I. director to maintain credibility with congressional Republicans and them from interfering in the bureau’s work and to assure Congress that a matter has been or is being looked into, is to announce to all the world 11 days before the end of an ongoing voting period in an election for control of all three branches of the federal government that Republican members of Congress call the shots at the FBI about what investigations it will and will not conduct into matters that have political implications.
And, the higher the political stakes, the more important it is for the FBI to publicly do the bidding of congressional Republicans.
Comey had promised congressional Republicans that he would do their bidding, see. And he didn’t wanna give too little thought to the governing that needs to happen after November.
Here’s what congressional Democrats, who might be allowed to play some small role in governing after November, should do: They should demand that Comey keep that promise and update Congress on any new information about the emails matter.
And the newest information is that what is involved in tens of thousands of emails from Huma Abedin’s personal email accounts, dating back to her time at the State Department. And that in order for her to have used the laptop at issue—her husband’s laptop—for work-related matters, including emails, she would have had to have done so by remote control, from another electronic device.
That’s because during her time at the State Department, she was rarely in the same place as her husband’s laptop. Clinton traveled very extensively as secretary of state, and Abedin was almost always with her. And when she was not traveling, she was at work much of the time, not at home and not at Weiner’s office in Washington or Brooklyn or, after early 2011 when Weiner resigned from Congress, at their apartment in Brooklyn.
I do get that Comey’s concern was doing the political bidding of congressional Republicans, not Democrats. But technically, his pledge to update Congress instantly about any new developments that the FBI discovered in the email case was a pledge as well to Democrats. Even if the new information is not quite what he congressional Republicans who requested that pledge had in mind.
And about that giving-some-thought-to-the-governing-that-needs-to-happen-after-November thing, may I suggest this? How about announcing, today, that it appears extremely unlikely that either Abedin or Weiner placed those tens of thousands of emails on the hard drive of Weiner’s laptop, and that the FBI is aggressively attempting to determine who did place them there.
Then how about announcing your resignation, effective shortly after November—y’know, when the governing need to happen?
And then, if you’re really the upstanding civil servant you claim to be, why not offer an apology to the country for hijacking the final 11 days of this national campaign and election, which had looked until last Friday that it might actually involve some discussion of policy proposals that could make an actual difference in the lives of, well, voters?
Just some suggestions, Director Comey. Then again, I’m a Democrat. And the only governing that needs to occur after November is at the direction of congressional Republicans. And maybe Donald Trump.
The line you’ve been selling for the last six days, absurdly successfully, notwithstanding, you weren’t in a bind by dint of the new, raw information the specifics of which you did not yet know.
But you sure as hell are now. Good. Grace.
Oh, and Columbia U., does Professor Richman have tenure? Cuz if not, maybe he could be replaced by Lewis Carroll. I mean, why keep the knockoff if you can hire the original?*
* Columbia U. Law School’s dean from 2004 to 2014, David M. Schizer, and still very much a chaired professor there, is a proud member of The Federalist Society. Seriously. Also seriously: He was appointed dean in 2004, at the very pinnacle of the Federalist Society’s power, its stranglehold on American law via the federal and state court benches, and in academia.
So, for of you who don’t want to see a replay of this, but who also don’t wanna bother to vote, or are undecided cuz Donald Trump will shake things up, or cuz State Department emails were planted on Anthony Weiner’s laptop, or cuz of the Clinton Foundation, you might wanna consider this–sometime before election day.
UPDATE: “Now the FBI has launched a new investigation,” Trump’s new ad says.
To which a Clinton ad should reply:
Indeed it has. And that investigation includes trying to track who put those years of Huma Abedin’s personal emails onto the hard drive of her husband’s laptop, and when.
Because it wasn’t Huma, who was nowhere near that laptop when most of those emails were sent, received, and originally opened. And who strangely enough did not put those tens of thousands of emails onto the hard drive of her own laptop.
That ad, or another one, should question the motive of the Federalist Society member and Columbia U. law school professor who advised Comey to write that letter to Congress—before anything even was known about them and in fact before there was a search warrant to learn what they even were.
The ad should quote the above statement by this professor, point out the extraordinary nature of what he said, and its profound implications—and that he himself has an interest in seeing a Republican president and, in any event, continued Republican control of the Senate.
Then maybe Clinton can finally start remind voters that Trump wants a Supreme Court that will carve Citizens United into granite, and will ALWAYS rule in favor of mega corporations—and an entire federal bench that will, too.
Hey, Hillary Clinton: There’s no time like the present for that. Y’know?
I mean … you know???
Comey needs to resign. Now. Even if Professor Richman or emeritus Dean Schizer advise him against it, cuz of all that governing that needs to be done after November. Seriously; click the above link to Schizer’s page on the law school website, and read what this guy does. And I wish someone would ask Elizabeth Warren and Bernie Sanders to do so.)
What else is Professor Richman advising Director Comey to do? Anyone wanna venture a guess? Any other suggestions for using FBI powers to undermine the validity of this election?
Updated 11/2 at 12:56 p.m.
SECOND UPDATE: Reader J.Goodwin and I just exchanged the following comments in the Comments thread to my earlier post on this from last night, titled “How Do You Use a Laptop Long-Distance?“:
J.Goodwin / November 2, 2016 9:58 am
Maybe they weren’t using it remotely, maybe they were using a single backup system for their entire family, and it was syncing files to it.
Onedrive, Dropbox, Carbonite…
Me / November 2, 2016 1:07 pm
Well, I suppose this is a possibility, and neither Abedin nor Weiner understood this. And if so, the FBI should make quick work of learning this.
But of course if this is what happened, it has nothing at all to do with the fact that Clinton used her own email setup and server. And it’s probably something that a lot of other government employees, including at State and other sensitive departments and agencies, are doing accidentally.
But this sure as hell illustrates the appallingly inappropriate nature of what Comey did last Friday, when he had no information whatsoever about the nature of this.
This guy should be run out of town on a rail.
I wonder if he realizes yet that even if Clinton wins, the outcome of close Senate and House races that went Republican will be of questionable legitimacy–their being possibly the result of the FBI director’s purposeful interference, by his own admission, with voting decisions of some voters.
Updated 11/2 at 1:24 p.m.
“[If] Comey didn’t announce this sketchy information publicly….”
Did he? Or did various congresscritters make it public? My understanding is that Director Comey simply informed the congresscritters on the Judiciary Committee that he was re-opening the investigation, but HE did not make that information public, CONGRESS did.
And of course it’s absolutely appropriate to hand over to members of Congress secret raw investigative information 11 days before a national election (or any time, actually) for the very purpose of informing the electorate of it–which IS what Comey said he wanted to do.
Or did you forget that that is what Comey himself said in that letter to FBI employees last Friday.
Learn something every day. Start with:
“Time4Learning teaches reading comprehension as part of an overall language arts program for enrichment, remediation, summer use, or homeschooling. The key reading comprehension skills, interacting with the text versus just decoding it, is taught by Time4Learning as part of an integrated language arts program delivered on line including phonics, vocabulary, fluency, writing, grammar, and critical thinking.
“My child reads but she doesn’t seem to understand what she reads. What can I do?”
I think Warren thinks enrichment happens the other way.
I am just trying to help. It appears to me that Warren is a little dyslexic. He can read the words, but somehow a lot of them slip by him, along with the definitions of some.
Well, I think that Comey’s behavior, including this more recent release of stuff about the investigation of Bill Clinton’s (stupid) pardon of Marc Rich, is reprehensible in the extreme. However, assuming that Hillary manages to survive it and win, with also the Senate going to Dem control, neither of them at all certain now (and this probably kills whatever remote chance there was of the Dems taking the House), it has been noted by a few observers that Comey’s leak, so now widely denounced even by many GOPs, may actually help her after the fact, assuming that indeed this investigation turns up nothing of any significance. It will weaken the case for House GOPs who want to investigate all this to the umpteenth power, although I doubt it will stop them from attempting to do so.
I am going to disagree with you on your mildness in reaction. What Bill did is a non sequitur and has nothing to do with HRC and her election. What Comey and his cronies did is a violation of the Hatch Act. I hope they sack hi and take his civil service retirement. In other words . . . f*ck him.
What Comey did with the computer and Weiner(s) is a 4TH amendment violation for Weiner. He will end up with a mistrial. For HRC, he has shown an unethical side and established he is a sack of sh*t who sits on the same level as Trump. He needs to go as his view of justice is prejudiced. HRC is going to win in a landslide if Princeton Consortium is correct and will set the Repubs back a decade. 2020 is an important year to win as redistricting is important. In Michigan it is important to correct the existing gerrymandering.
For those who thought that Comey and the Russia allegations were already signs that the campaigns had gone nuclear:
“And of course it’s absolutely appropriate to hand over to members of Congress secret raw investigative information….”
So, he cannot get a warrant without re-opening the investigation, so you think he should have re-opened the investigation and NOT told the oversight committee?
The Clinton ad should simply ask Comey directly why he had the FBI place secret State Department documents on a laptop serving as evidence in another, unrelated case. Nothing succeeds in politics quite like brass.
His behavior provides a basis for attacking his “extremely careless” description. Looks like it was a partisan exercise. And it comes back to the question, who gets to decide whether a communication needs to be classified or not. State makes its own decisions about its own internal correspondence, and State Department personnel made the decision that not one of the emails needed to be marked classified. The CIA may after-the-fact claim that something should have been classified back then, but agencies disagree about what needs to be kept secret all the time. The CIA will tend to want everything to be classified, even a drone program that was widely reported on in the press worldwide and that the President, who has the final word on classification, discussed publicly.
Clinton has said that she disagrees with his “careless” language — saying these State lifers have years of experience deciding what needs to be handled through the secure systems — and perhaps she should resurrect that disagreement. It is such a difficult issue to handle because even though there is no substance whatsoever — it was the right decision at the time because it was the only way to see both her personal emails and non-classified emails on the same device as they came in (and it surely, based on prevalence of similar use by high officials in government was the least weighty decision facing her compared to, say, Osama bin Laden, Syria, Libya, Russia and China — the press has imbibed the Republican propaganda about it and will attack any time she doesn’t look apologetic. Maybe it’s too late to do anything.